There is a common complaint among attorneys who do appeals that they do not recognize the fact pattern described in their appellate decisions. The belief is that appellate courts sometimes start with the result they want to establish and then highlight facts that would justify that result and ignore or downplay facts that might lead to the opposite conclusion.

One sees that happen occasionally when a higher appellate court overturns the decision of a lower appellate court. United States Supreme Court Justice Robert Jackson’s wry if not cynical observation, concurring in Brown v. Allen, 344 U.S. 443 (1953), notes “[w]e are not final because we are infallible, but we are infallible only because we are final.” A favorable factual recitation adds to the veneer of infallibility.

Something like this may be going on in the December 2, 2015 South Carolina Supreme Court opinion in Bass v. SCDSS, 414 S.C. 558,
780 S.E.2d 252 (2015), which reversed the Court of Appeals’ decision, Bass v. S.C. Dep’t of Soc. Servs., 403 S.C. 184, 742 S.E.2d 667 (Ct. App. 2013), finding there was evidence that South Carolina Department of Social Services (DSS) acted in a grossly negligent manner.

Bass stems from a tort claim parents brought against DSS. Two of their children were hospitalized within days of each other and the hospital raised concerns to DSS that the children might have been poisoned by their parents. DSS removed the children from the Basses’ custody while conducting an investigation. That investigation ultimately revealed that the children’s prescribed medication was inadvertently mixed at one thousand times the recommended concentration. The children were returned to their parents, who sued DSS in tort.

At trial the jury found DSS liable and the trial judge refused DSS’s motion for judgment notwithstanding the verdict, finding some evidence that DSS was grossly negligent (which is the standard one must meet to bring successful tort claims against DSS). In reversing the trial court, the Court of Appeals noted that the children were returned to the Basses eight days after DSS learned of the prescription error and that DSS policy only gave the caseworker 24 hours to make a determination on removal once concerns about the children being poisoned by their parents was raised by the hospital. It found DSS, at a minimum, exercised slight care and therefore did not meet a gross negligence standard.

Assuming the Court of Appeals recitation of the facts did not neglect facts helpful to the Basses, it’s hard to see this as even a close case. Two siblings in the emergency room with similar poisoning would raise concerns with most investigators and taking eight days to unravel the facts and return the children is actually quite speedy by state agency standards. Given the requirement of proving gross negligence to prevail, it is somewhat surprising the Basses even brought this claim.

In reversing the Court of Appeals, the Supreme Court highlights different facts to justify evidence of gross negligence. It noted that “DSS cannot remove a child unless there is an unreasonable safety threat to the child, and that the standard practice is to keep children in the home when possible. Moreover, in cases involving potential medical neglect, DSS caseworkers must consider medical evidence.” The caseworker testified “that in order to complete a medical neglect investigation, a caseworker must communicate with medical treatment providers, and that children cannot be removed from the home without fact-finding to substantiate the medical claim.” The caseworker further “testified that she ‘did not look into the poisoning,’ but instead ‘wait[ed] for the lab results.’” She “acknowledged that she did not speak to a doctor about the children’s illnesses or the lab results, yet she based the removal of the children solely on the possibility that the children had been poisoned by medication.”

It further appears that the caseworker was suffering from medical problems that limited her ability to conduct a thorough investigation but that her supervisor threatened her with termination rather than assigning the case to a different caseworker. DSS’s own expert “admitted that DSS is required to conduct a thorough investigation before removing children from their parents, and DSS did not do so in this case.”

In reversing the Court of Appeals the Supreme Court further noted that the lower court exercised an improper standard of review:

Rather than examining the record to discern whether there was any evidence put forward at trial to support the jury verdict, the court of appeals seems to have searched the record for evidence to corroborate DSS’s theory of the case—that it acted with slight care. However, even though DSS presented some evidence that it acted with slight care regarding certain aspects of its investigation, especially in the pre-EPC removal setting, there was likewise ample evidence in the record that DSS acted with gross negligence with respect to the post-EPC investigation—or lack thereof. Accordingly, we cannot say that the record was devoid of evidence to support the jury’s verdict, and we reverse the court of appeals.

Perhaps most noteworthy in justifying evidence of gross negligence was that DSS continued to make announced and unannounced visits at the Bass home for six months after the children’s return and still refuses to remove its finding that the Basses “harmed their children” from the agency’s file on them. This is inconsistent with DSS’s apparent defense that the removal was an innocent mistake.

Anyone reading the factual recitations in the Court of Appeals and Supreme Court opinions would think they were reading two very different cases. The Court of Appeals opinion makes one wonder how any factfinder could find gross negligence. The Supreme Court opinion provides plenty of evidence of gross negligence. The Supreme Court’s opinion in Bass makes it slightly easier to bring tort claims against DSS…but it still isn’t easy, and, as an attorney who sometimes needs DSS’s cooperation to represent my own family court clients, I don’t anticipate bringing any such claims any time soon.